A federal judge used tough language to block efforts by the Obama administration to limit the legal rights of terror suspects held at the GuantanamoBay military prison inCuba, ruling Thursday that proposed changes were an "illegitimate exercise of executive power."

Officials of the departments of Justice and Defense had claimed they alone should decide when the prisoners deserve regular access to their attorneys.

But in a 32-page ruling, Judge Royce Lamberth said federal courts had proper authority to decide the matter, and criticized the executive branch for recently changing the procedures, when he said the current system was working well.

"The old maxim 'if it ain't broke, don't fix it' would seem to caution against altering a counsel-access regime that has proven safe, efficient, and eminently workable," said Lamberth. "Indeed," he added, "the government had no answer when the court posed this question in oral arguments" last month.

"Access to the courts means nothing without access to counsel," added the judge.

Justice Department lawyers said they have started restricting when Guantanamo prisoners could challenge their detention in the Washington-based federal court. If approved, any relaxing of the rules would be made on a case-by-case basis at the exclusive discretion of military officials, not by the courts.

At issue is whether a Supreme Court decision on detainee rights from 2008 gives federal courts the ultimate power to control so-called "habeas" petitions from foreign combatants in U.S. military custody. Volunteer private lawyers say they deserve regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges.

Under the proposed changes, the Navy base commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations.

"The dispute thus before the court, though important, is quite narrow," said the government in its earlier legal filing. "The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to" challenge continued access to counsel. "The answer to that question is 'no.'"

Lamberth's Washington-based federal court has been handling the many appeals filed by the prisoners. There are currently 168 detainees - all male - in the Guantanamo facility, most of whom do not have pending charges. Five Muslim men labeled "high-value detainees" are being prosecuted before a military commission for their alleged leadership roles in the 9/11 terrorist attacks.

In the so-called Boumediene ruling in 2008, the high court said "enemy combatants" held overseas in U.S. military custody have a right to a "meaningful review" of their detention in the civilian legal justice system. It would force the government to present evidence and justify keeping the prisoners indefinitely, without charges. But a federal appeals court in Washington has since refused to order the release of any detainee filing a habeas corpus writ, in some cases rejecting such orders from lower-court judges.

Civil rights groups applauded the court opinion.

"The court has correctly recognized the government's attempt to restrict attorney access to the men at Guantanamo as the latest in a ten year history of successive efforts to "delay, hinder, or prevent access to the courts," said Vincent Warren, executive director of the Center for Constitutional Rights, which has been representing many of the Gitmo prisoners. "The new rules came out of the blue and can only be seen as an effort to punish the men at Guantanamo for exercising their right to challenge their detention. These rules would have given the government unfettered control over Guantanamo. As the court said, the executive cannot be trusted with such power."

The administration has argued it does not seek to restrict lawyers who have an active legal appeal, but that the rights of detainees shrink once they have filed their first habeas challenge. The military says lawyers must now agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release.

And lawyers would be prohibited from using any information they gather that might help the prisoners appearing before a Periodic Review Board. Review boards are newly designed panels of military officials to decide whether a Guantanamo inmate should continue to be held, and whether that person is a national security threat.

Those boards were put in place by President Barack Obama by executive order, but have not been fully implemented.

"Executive Order 13,567 does not provide detainees who undergo PRB review with a judicially enforceable right to counsel, or any justification for asking the Court to impose a counsel-access regime on the PRB process other than the one developed, per the Order's direction, by the Secretary of Defense," said the government. "As a general matter, executive orders are viewed as management tools for implementing the President's policies, not as legally binding documents that may be enforced against the Executive Branch."

The government said the court's power to intervene was limited, and had urged Judge Lamberth to deny the request guaranteeing attorney access. But in strong language the judge refused.

"The court has an obligation to assure that those seeking to challenge their executive detention by petitioning for habeas relief have adequate, effective and meaningful access to the courts," said Lamberth. "And it is undisputed that petitioners here have a continuing right to seek habeas relief. It follows that petitioners have an ongoing right to access the courts and, necessarily, to consult with counsel. Therefore, the Government's attempt to supersede the court's authority is an illegitimate exercise of executive power.

"The court, whose duty it is to secure an individual's liberty from unauthorized and illegal Executive confinement, cannot now tell a prisoner that he must beg leave of the executive's grace before the court will involve itself. This very notion offends the separation-of-powers principles and our constitutional scheme."

The Justice Department now has the option of asking a federal appeals court to intervene.

The case is In re: Guantanamo Bay Detainee Continued Access to Counsel (1:04-cv-1254).

soundoff(94 Responses)

Robbin Goal

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So only one person on here is asking if these guys are guilty? Isn't that the most important question of all? I agree with Tim. If the prisoners are all guilty then put them in the gas chamber, hang them, whatever. But how do we know who is guilty and who is innocent? Maybe they're all guilty of terrorism, maybe not. You all want to see them suffer, but you don't actually know all the facts. We can't just say they're guilty, we've got to prove it, right? Don't you believe in that? Isn't that what America is about?

It seems like the same people that would not trust the government to do their taxes are somehow wholly trusting of the government to decide without trials who should be jailed for life. How is that possible for one mind to keep both things in it?

Judge Can Suck Deez!The Judge can SLAM DEEZ! No wonder America is falling apart becuase we are not allowed to kill or put terrorist on trials. Remember the bad guys and gals always have more rights than the good people.

I suppose you aren't proud of our American traditions of law and order. I realize that the system is a little off kilter but denying due process to these folks shows the world we are nothing like we say we are. No one in the world needs to believe America when we claim to be a country of Laws because we don't even follow them if it feels inconvenient.

Perhaps you didn’t take civics class; perhaps you don’t know what America is supposed to be like. It is clear that you don’t care.

So Mr. Transparency was just cited for illegitimate use of executive power. But that's okay because the drooling Dimbocrat sheep will still support him because the Die Partei of the Democratic/Socialist?Communists tell them to.

Here is my question to all of you. ARE THEY ALL GUILTY? Think about that. Do you really KNOW that they're ALL guilty? NO. You don't. You weren't there. That's the whole point. SOME of them might be INNOCENT! Yeah, I figure MOST of them are guilty. Hell, maybe they're ALL guilty. I wouldn't know. I wasn't there. But that's why we have to treat them fairly and let them have justice. If they're ALL guilty then gas'em all. I don't care. But before you say "they're our enemies, they don't have rights" ask yourself – WHAT IF SOME OF THEM ARE INNOCENT? Is the USA gonna hang people just because they have the same name as a terrorist, or whatever?

Well then tough guy, all we can do is hope and pray you or someone you love is accused of 'terrorist' activities and kidnapped by the CIA off the streets. Hopefully they'll drag you through a series of black op prison sites where you are beaten and tortured for the information you have. If you're lucky they'll just throw you into a cage but if you're unlucky you'll die and they'll just discard your body. No trial. No evidence. Nope, you'll just be dead without any Rule of Law and people like you will clap, cheer and foam at the mouth while dancing in support of extrajudicial assassination and torture.

When a civilized man stoops to the level of the barbarian he becomes WORSE than that of this opponent. This is an idiom that has stood the test of time. Any man that denies another the Rule of Law himself is not deserving of its' protection.

Ummmm, Didn't the Hopey, Changey guy promise to close this down. What happened? Oh that's right if Bush keeps it open it's evil, If OB keeps it open then let's just ignore it and hope nobody is paying attention.

screw that judge .....that judge is the very example of what is strangling America....these detainees have ZERO rights that are afforded to Americans.....these detainees are the enemies of every American and would kill all of us given the chance....THAT JUDGE is as big a threat to America as any Al qiada.

When the President of the United States decides he can blow American citizens away with Hellfire missiles instead of trying them... oh, wait... President Hope, Change, and Transparency has already done that more than once.

It's a good thing there are Federal judges with enough backbone to stand up to the executive branch.

In America the founders believed that rights were bestowed by the Creator not the Government, meaning that everyone in the world no matter what their citizenship is has been endowed with inalienable rights. (Rights that can not be taken away)

Gitmo is on American territory, they are human beings, and they deserve humane treatment and access to legal representation.

THis idea that an enemy has legal rights is a crock of ^&**s$&^t. An enemy is one you seek to destroy, not provide free r&b and legal counsel and so called rights. Perhaps the policy should mirror the enemy's treatment of our people when caught. Execute them and dump the body in the ocean. Save us a heck of a lot of money.

speaking for those of us that actually have a spine and testicles, these people are barbarians, animals, who just want to kill you because you dont believe like they do. you wimps cry for these poor deprived men who would rape your chilren and wife and video tape their beheading.

Lets end gitmo, kill all of the prisionors and just end it. most that have been released went back to fighting and terrorism. they are not humans much less American citizents, they deserve no rights, only death,

http://www.cnn.com/2012/09/10/world/meast/yemen-al-qaeda/index.html?hpt=hp_t3 take a look. pretty interesting reading. I know, they are all nice guys, they surrendered, hands up, backs turned while praising America. come to NYC, i can sell you a couple of bridges on the cheap.

September 10, 2012 at 1:54 pm |

History Bear

If they believe we are evil, hate us because we aren't muslim and follow that sherry law, then yes, they are the enemy and the enemy must be destroyed.

September 11, 2012 at 11:30 am |

stan

Um, er, you of course do realize that you are promoting the killing of them because they don't agree with your line of thinking? You do realize that makes you a hypocrite and a bit of a moron, eh toughguy?

a good point. where does it stop? and how do we know all of these people are indeed guilty of something? I am sure some are, but others were probably in the wrong place at the wrong time, or fighting on the wrong side when we walked in.

AFTER careful consideration, methinks that the courts DO have a right to decide whether-or-not those accused of being an enemy combatant are guilty of being just that but nothing more. Should P.O.W.'s have access to our court system ??? They are not Americans. And they are P.O.W.'s with access to military information. We are in a State of WAR. if he/she is a proven combatant and thus a P.O.W., then they fall under the Geneva Convention until the War is over and not under any judicial consideration. If OUR system utterly persists, then our military might be driven into allowing our allies to house them elsewhere.

Absent a declaration of war by Congress, we are not in a "state of war". Period.

The whole thing is s shameful farce. It is also sad that so many in the US do not trust our legal system to provide accused terrorists with a fair trial and justice. I honestly think the civilian courts will do a better job than any military tribunall. Why are so many so afraid of the truth?

Similarly, I would not expect American juries to go light on terrorists who are genuinely guilty of crimes. By the same token, since there is no declaration of war and these are not the troops of an organized foreign armed force, they are emphatically NOT POWs and not subject to military law. They are criminals and as such should be tried in our courts and punished accordingly.

Geneva conventions apply only to legal combattants. Among other things they must be declared and wear recognizeable uniforms or insignia. Non-lawful combattants do not enjoy those protections, have no claim to POW status, and may be lawfully executed at the captor's discretion. We may have chosen to be more tolerant, but make no mistake about what 'rights' these animals have. They are not POWs and have no claim on that status.

September 12, 2012 at 1:59 pm |

svann

@historyprof If they arent pow then they are criminals. Cant have it both ways.

September 16, 2012 at 5:41 pm |

bill

So you are crying about the physical location and changing whom might be charged. American citizens can be held without charges indefinitely when the King says. 61 Senators think that is OK as well. Does it really matter where this takes place?

They are enemy combatants taken in a war of phantom enemies who never signed the Geneva Conventions. Those prisoners can be held until the conclusion of hostilities or the end of time, which ever comes first. No charges are required and no legal proceedings are required. Everyone else who thinks otherwise can cry their little eyes out.

A couple of points. If this is a war, then it is one without end and the poor souls in Gitmo and elsewhere are condemned to life without parole. Some might think that is fine, but it works to our disadvantage in many ways. We elevate this to a war and it is seen as such. We relegate it to a criminal act, and it becomes another thing entirely.

During the Bush administration, anything that could be construed to be a negtative at GITMO was reported by CNN and other mainstream media to be the fault of the president. Now during Obama's term it is the military's fault! There is no impartial and accurate reporting of world events by any news organization. However, CNN is much worse than Fox.

Incredible?...No,not really.Let's face it,while Bush was in office,CNN despised him and clearly voiced that opinion.While Obama is in offfice,Fox hates and demonizes him on a daily basis.Why are you at all surprised at these bizarre,irrational news networks and their reporting?..

September 8, 2012 at 6:37 pm |

rick1948

The people at Gitmo don't deserve a judge or anybody else to pander to their whinigs. The only person they need to be seeing is the military judge who will schedule their executions.

These people might be innocent. Let's give them a trial like I hope you would get if you were picked up for being in the wrong place at the wrong time. This country should not imprison people without trial.

Absolutely. The fact is the terrorists exploited a weakness (the trial or no trial issue) and the US had to act illegally (no counsel no trial +torture) to plug the hole. Now they try to do the same with US citizens that dissent. Watch out.

September 9, 2012 at 10:38 pm |

SixDegrees

Keep all that in mind when the government locks you up. Just because you like the results now doesn't mean you'll like them when the same powers are applied by someone you disagree with.

Often times have no better idea of guilt or innocence after a criminal trial.. Remember O.J.?

September 9, 2012 at 11:15 pm |

Dan

Let's set the cost of the wars is 1,370,533,769,437 (so far), there are ~ 230,000,000 legal U.S. adult citizens. I suggest, in order to boost the economy, instead of spending all the money on the wars upon Irag and Afghanistan, the money should be distributed as a bonus or tax break to all legal adults, that's $5959.00 per person! That's a huge amount of money for ordinary folks. That would really stimulate spending, reduce personal debt etc! Whoops! I forgot, that's money's already been spent.

How about instead we spend that amount and more on wounded and maimed soldiers who fought those battles for this country instead of just giving that money away to those who have hardly earned it?..Doesn't that make more sense?

We could all go to the local Haliburton Prosthesis Center and go shopping. They are running a special 50-75 % off.

September 9, 2012 at 10:42 pm |

Michael B

There are approximately 315,000,000 people in the US as of 2012. Are you seriously saying that there are about 85,000,000 illegals in this country? That is false and you know it. As for how money should be spent, it sure as heck shouldn't just be given back to the population. It should be spent on things that matter.

One of the highlights of the 2k8 campaign for me was the promise to close gitmo and end the wars in the middle east. To me it seems that not only did that not happen but we got more involved over there and gitmo is still housing these people. they need to be given trials and executed. If you dont have enough evidence to execute them then maybe you should let them go. either way enough spending tax money on this nonsense please.

Pres. Obama tried to close down Gitmo. But the Republicans said NO! No to having their case tried in a Federal Court, and no to having the Convicted ones serve time in the United States Prisons. Checkmate..... No closing of Gitmo...

Checkmate? The refusal to close Gitmo was bipartisan. And the expansion of the drone killing program to unprecedented levels, and the inclusion of American citizens without due process of law was all Obama. Check that, mate.

September 8, 2012 at 8:38 am |

Bob58

Actually the President, as promised, signed for Gitmo to close it's Detention Center days into office ..... and it was stopped by both Parties in Congress ...... and the President, as promised, brought the Troops home form Iraq IMMEDIATLY after Pres. Bush's committment to leave Troops there through 2011 was met ..... Not to menton the TERRIFIC success on the Real War on Terror.

Kudos to this judge for doing the right thing here. No matter how politically unpopular these prisoners are, they still are human beings and have a right to legal council and moreover, not to be tortured!!! Enough of this right-wing lynch mob mentality already!

It would seem that this "lynch mob mentality" is not a right-wing phenomenon at all. Time to call a spade a spade and admit that not only has President Obama continued the policies of President Bush in this arena, he has expanded them.

He has also improved these policies and made then into a more efficient killing machine.Kind of like the Taliban making their IED's more lethal by using EFP's introduced to the Iraqi battlefield by Iran's Revolutionary Guard.Got to stay a step ahead of the rodents in turbans.

September 8, 2012 at 8:06 pm |

UhYeaOk

@George, right wing? Since when did the Obama administration go right wing? Enough of this left wing hypocrisy and lying.....

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